Martin v. City of Alexandria

PRESENT: All the Justices

H. CURTISS MARTIN, ET AL.
OPINION BY
v. Record No. 121526 JUSTICE ELIZABETH A. McCLANAHAN
JUNE 6, 2013
CITY OF ALEXANDRIA, ET AL.

FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
J. Howe Brown, Judge

H. Curtiss Martin and Virginia Drewry (Martin) appeal from

the circuit court's judgment upholding the decision of the Board

of Zoning Appeals of the City of Alexandria (BZA) granting side

and rear yard variances to James and Christine Garner (Garners).

Because the BZA's decision was contrary to law, we conclude the

circuit court erred.

I. BACKGROUND

The Garners seek side and rear yard variances in connection

with a proposed design of a single family home on their property

located at 122 Prince Street in the City of Alexandria. The

property has 36 feet of frontage along Prince Street and is

44.33 feet deep. It is zoned RM and is required to have two

five-foot side yards and a 16-foot rear yard under the Zoning

Ordinance of the City of Alexandria (Zoning Ordinance). See

Zoning Ordinance §§ 3-1108(C)(1), 3-1106(A)(3)(a). Located on

the 100 block of Prince Street known as "Captain's Row," the

property is also subject to the Zoning Ordinance requirements

for the Old and Historic Alexandria District (Historic District
Ordinance). The Historic District Ordinance requires the

issuance of a certificate of appropriateness from the Old and

Historic Alexandria District Board of Architectural Review (BAR)

for new construction. 1

Adjoining the Garners' property on the east is the property

owned by Martin, located at 118 Prince Street. 2 The home built

on the property located at 126 Prince Street, which adjoins the

Garners' property to the west, is one of the City's only

remaining examples of late 18th century rough sawn wood used as

siding. Preserving a view of this wall is a factor in the BAR's

decision to issue a certificate of appropriateness for any home

design the Garners might submit.

In 2003, the Garners applied for a side yard variance of

five feet and a rear yard variance of 16 feet. City staff

1
In passing upon the appropriateness of any "proposed
construction, reconstruction, alteration or restoration of
buildings or structures," the BAR shall consider numerous
features and factors including the "height, mass and scale of
buildings or structures," "the impact upon the historic setting,
streetscape or environs," and "the extent to which the building
or structure will preserve or protect historic places and areas
of historic interests in the city." Historic District Ordinance
§ 10-105(A)(2)(a),(c),(e).
2
An eight-foot wide alley separates the properties owned by
the Garners and Martin, who are parties to proceedings initiated
by the Garners to determine title to the alley. See Martin v.
Garner, ___ Va. ___, ___ S.E.2d ___ (2013) (this day decided).
For the purposes of the current BZA application, the Garners
have agreed that their side yard is calculated without regard to
any portion of the alley.
2
recommended denial of the application based on its opinion that

the strict application of the Zoning Ordinance would not result

in undue hardship to the property. According to the staff

analysis, "[t]he lot is level and there is no condition of the

lot which restricts the reasonable use or development of a new

single-family dwelling." Further, City staff noted "[t]he lot

is a large buildable lot that can be developed without the need

of a variance. The lot's characteristics are similar to other

lots within this section of Prince Street." In addition, City

staff explained that "[g]ranting the variance will be

detrimental to the adjacent property to the east [Martin's

property]" because the neighbor "will now view 44.3 feet of

building wall." The City deferred action on the Garners'

application pursuant to the Garners' request due to ongoing

legal issues pertaining to the title to the alley running

between the Garners' and Martin's properties.

In 2005, the Garners applied for a side yard variance of

five feet and a rear yard variance of 14 feet. City staff again

recommended denial of the application because "[t]here is no

justification for hardship." According to the staff analysis,

"[a] new house (23 feet wide facing Prince Street by 28 feet

deep by three-stories) can be constructed on this property in

compliance with the east side and rear yard setbacks."

3
 Although the lot is less than half the depth (44.33
feet) compared to the standard Old Town lot of 100
feet deep it is twice as wide as the minimum lot width
required for an RM zoned lot. The wider lot does
compensate for the loss of lot depth, but does not
limit the placement of a new house on the lot. The
placement of the new house is located in compliance
with the zoning rules from the west side property line
to maintain open space, respect the historic wall at
126 Prince Street and maintain views of Prince Street
for the neighbors directly behind the applicants at
130 South Lee Street. The BAR will require the new
house to not impede the view nor allow a new structure
that could effect the historic wood wall on the east
side of the house at 126 Prince Street.
By shifting the new house west by another 4.00
feet from the western edge of the private alley to
address the east side yard setback will still provide
8.00 feet of distance from the historic wall at 126
Prince Street. No side yard variance will be needed.

City staff also stated that "[t]he property is not unique

to support the placement of the house closer to the rear

property line than the minimum of 16.00 feet" and a "two-story

house at 126 Prince Street west of the subject property is built

on a similar size lot . . . but is located almost 16.00 feet

from the rear yard property line as required by the zoning

code." After a BZA hearing on the application, the Garners

withdrew their 2005 application.

Subsequent to their 2003 and 2005 variance applications,

the Garners sought a determination from the Zoning Administrator

that they could utilize a portion of the abutting alley to

calculate their east side yard. After the Zoning Administrator

determined the alley could not be counted toward the side yard,

4
the Garners appealed this decision to the BZA, which affirmed

the decision of the Zoning Administrator. The Garners appealed

the BZA's decision to the circuit court. Prior to trial, the

Garners and the City entered into a "Stay of Litigation

Agreement" in which the City agreed that its Department of

Planning and Zoning will support the Garners' application for a

three-foot side yard variance, to be measured without regard to

their claim of ownership of the alley, in consideration of the

Garners' agreement to stay the litigation.

In 2011, the Garners submitted the current application

seeking a three-foot side yard variance and a 13-foot rear yard

variance. The design for the proposed home was submitted to the

BAR which approved the Garners' application for a certificate of

appropriateness. In connection with the Garners' variance

application, the Historic Preservation Manager, Al Cox,

submitted a memo to the BZA relaying the BAR's decision on the

design of the home proposed by the Garners. Cox stated that the

BAR "found the height, mass, scale and architectural style to be

appropriate for the historic character of the block" and "the

general design and arrangement of the building on the east side

of the site adjacent to the alley was consistent with the

historic setting, streetscape, and environs" following "the

historic development patterns in the [Historic District]."

5
 At the BZA hearing on the Garners' variance application,

the BZA received the report of the City staff describing the

proposed house as a "two-and-one-half story, three-bay, brick

townhouse in a late Federal architectural style" to be "located

on the front property line facing Prince Street, 2.00 feet from

the west edge of the private alley, 11.00 feet from the west

side property line and 3.00 feet from the rear property line."

Thus, a "variance of 3.00 feet from the west edge of the private

alley and 13.00 feet from the rear property line is required."

Noting that "Captain's Row is an especially important street in

Alexandria," City staff supported the two variances "not only

because the result is a good development compatible with its

historic context, but also because the applicants' case meets

the legal standards for the grant of a variance."

In particular, staff stated that because this application

concerns "a new house in Old Town and on the 100 block of Prince

Street," it is unique since "[t]he zoning regulations and

requirements in the Old and Historic District are designed to

apply to old buildings." (Emphasis in original.) According to

staff, "the RM zone regulations . . . are especially intended to

apply to additions to historic buildings, and are rarely used

for new houses on vacant lots." In addition, the Garners' lot

is shallower than two-thirds of the other lots on Captain's Row.

6
 In its report, City staff stated that having two five-foot

side yards "would actually call more attention to the proposed

house because it would appear to be the only single family

detached house on a block of row houses" and the proposed

location "will maintain the historic sense of open space

immediately adjacent to 126 and 130 Prince Street and allow the

historic rough sawn siding on that east wall to be clearly

visible." Staff supported the rear yard variance because "it is

far preferable to have the public view of a house with a

narrower, more historically appropriate width and depth, than a

shallow house with an architecturally grand, four-bay wide

frontage." According to staff, "[i]f the house were modified to

meet both zoning and BAR requirements, it would be very small

relative to the other houses on the block. While the RM zone

provides for such dimensions, it was not designed primarily for

the construction of new houses."

In the Garners' application and at the hearing before the

BZA, they advanced four primary factors justifying the

variances. First, the Garners asserted that their property is

the only vacant buildable lot on the 100 block of Prince Street.

Second, they pointed out that their property is wider and more

shallow than most of the other lots in the RM zone. Third, they

noted that their property is adjacent to the historic siding on

the home located at 126 Prince Street. Finally, they argued

7
that these factors, in combination with the enforcement of the

RM zoning regulations and the Historic District Ordinance would

amount to a clearly demonstrable hardship. The Garners

contended they "cannot build a house with two side yard setbacks

and a sizeable rear yard without resulting in an atypical

footprint from other houses located in the historic block of

Prince Street." According to the Garners, "[t]he BAR confirmed

this in their deliberations and approval of a certificate of

appropriateness for the proposed home on the lot."

At the hearing, opponents of the variances pointed out to

the BZA that the City staff had submitted a home design that

conformed to the Zoning Ordinance and that could be built on the

Garners' property. Neither this design, nor any other design

conforming to the requirements of the Zoning Ordinance, however,

was submitted by the Garners to the BAR for a certificate of

appropriateness. At the conclusion of the hearing, the BZA

voted to approve the application. Martin appealed the decision

of the BZA to the circuit court, which upheld it. 3

3
Martin initially filed a "Petition for Writ of Certiorari"
pursuant to Code § 15.2-2314 serving the City Attorney as
counsel for the City of Alexandria and the City Council for the
City of Alexandria. In response, the City Council filed a
motion to quash the petition and demurrer asserting that the
correct basis for Martin's appeal was the City of Alexandria
Charter (City Charter) § 9.20 under which the circuit court is
not required to issue a writ of certiorari and the governing
8
 II. ANALYSIS

A. City Charter Provisions

The Alexandria City Charter (City Charter) governs appeals

from the BZA. It provides that the circuit court "may reverse

or modify the decision reviewed . . . when it is satisfied that

the decision of the board is contrary to law or that its

decision is arbitrary and constitutes an abuse of discretion."

City Charter § 9.21. Applying this standard, which is also

contained in the Code, we have stated:

"A proceeding before the trial court under Code §
15.1-497 [the predecessor to § 15.2-2314] is not a
trial de novo. There is a presumption that the Board's
decision was correct and the burden is on the
appellant to overcome this presumption. The court may
not disturb the decision of a board of zoning appeals
unless the board has applied erroneous principles of
law or, where the board's discretion is involved,
unless the evidence proves to the satisfaction of the
court that the decision is plainly wrong and in
violation of the purpose and intent of the zoning
ordinance."

Riles v. Board of Zoning Appeals, 246 Va. 48, 51, 431 S.E.2d

282, 284 (1993) (quoting Alleghany Enterprises, Inc. v. Board of

Zoning Appeals, 217 Va. 64, 67, 225 S.E.2d 383, 385 (1976))

(citations omitted). "[A]ny arbitrary or unreasonable action,

body of the City is not a necessary party. Thereafter, Martin
filed an "Amended Petition for Appeal" and the parties agreed
that the proper party to the appeal under the Charter was the
City. Pursuant to the agreement, the circuit court entered a
consent order dismissing the City Council as a party.
9
contrary to the terms or spirit of the zoning law, or contrary

to or unsupported by facts, [i]s an illegal action" by a board

of zoning appeals. Hopkins v. O'Meara, 197 Va. 202, 205, 89

S.E.2d 1, 3 (1955) (citing Anderson v. Jester, 221 N.W. 354, 359

(Iowa 1928)).

The City Charter defines the powers of the BZA and provides

that the BZA may authorize a variance "when, owing to special

conditions a literal enforcement of the provisions will result

in unnecessary hardship; provided that the spirit of the

ordinance shall be observed and substantial justice done," upon

the property owner's showing of at least one of the following

conditions and one of the following justifications:

When a property owner can show that his property was
acquired in good faith and where by reason of the
exceptional narrowness, shallowness, size or shape of
a specific piece of property at the time of the
effective date of the ordinance, or where by reason of
the exceptional topographical condition or other
extraordinary situation, or condition of such piece of
property, or of the use or development of property
immediately adjacent thereto, the strict application
of the terms of the ordinance would effectively
prohibit or unreasonably restrict the use of property
or where the board is satisfied, upon the evidence
heard by it, that the granting of such variance will
alleviate a clearly demonstrable hardship, 4 as

4
Code § 15.2-2309(2), which contains virtually identical
language, and the City Charter previously permitted a BZA to
grant a variance only where it would "alleviate a clearly
demonstrable hardship approaching confiscation." See Former
Code § 15.2-2309(2) (2008) (emphasis added). In 2009, the
General Assembly removed "approaching confiscation," from the
10
 distinguished from a special privilege or convenience
sought by the applicant, provided that all variances
shall be in harmony with the intended spirit and
purpose of the ordinance.

City Charter § 9.18(b).

"[N]ot only must an applicant show the existence of at

least one of [these] several 'special conditions' which would

cause compliance with a zoning ordinance to result in an

'unnecessary hardship', but the board of zoning appeals must

find that the [following] three enumerated tests are satisfied."

Packer v. Hornsby, 221 Va. 117, 121, 267 S.E.2d 140, 142 (1980)

(citing Tidewater Utilities v. Norfolk, 208 Va. 705, 711, 160

S.E.2d 799, 803 (1968)); Board of Zoning Appeals v. Nowak, 227

Va. 201, 204-05, 315 S.E.2d 221, 223 (1984). Specifically, the

BZA must find:

(1) That the strict application of the ordinance would
produce undue hardship.

(2) That such hardship is not shared generally by
other properties in the same zone and the same
vicinity and is not created by the owner of such
property.

(3) That the authorization of such variance will not

statewide statutory provision, 2009 Acts ch. 206, and the same
change was implemented by the Legislature in an amendment to the
City Charter the following year. 2010 Acts ch. 221. City staff
relied, in part, upon the elimination of this language to
justify its change in position regarding the Garners' request
for the variances.

11
 be of substantial detriment to adjacent property and
that the character of the zone will not be changed by
the granting of the variance.

City Charter § 9.18(b). 5 Finally, the City Charter provides

that

[n]o variance shall be authorized unless the board
finds that the condition or situation of the property
concerned or the intended use of the property is not
of so general or recurring a nature as to make
reasonably practicable the formulation of a general
regulation to be adopted as an amendment to the
ordinance.

City Charter § 9.18(b). 6

B. Evidence to Support Variances

Noting that where the City Charter formerly required proof

of a "hardship approaching confiscation" it was amended to

require only a showing of a "clearly demonstrable hardship," the

Garners contend that the BZA may now authorize variances in

instances that previously were not authorized. Their argument

ignores, however, the fact that the amendment did not alter the

remainder of Section 9.18(b) of the Charter, which "requires a

board of zoning appeals, prior to approving a variance, to make

certain findings of fact, which we deemed 'crucial'" in

discussing the analogous statewide statutory provisions in Code

5
Code § 15.2-2309(2)'s three enumerated tests are the same,
except that it does not require finding that the hardship "is
not created by the owner of such property."
6
Code § 15.2-2309(2) provides a similar limitation.
12
§ 15.2-2309. Hendrix v. Board of Zoning Appeals, 222 Va. 57,

60, 278 S.E.2d 814, 816 (1981) (citing Packer, 221 Va. at 121,

267 S.E.2d at 142).

Thus, notwithstanding that the BZA need not find a hardship

"approaching confiscation" to grant a variance, the BZA still

must find that (i) "the strict application of the terms of the

ordinance would effectively prohibit or unreasonably restrict

the use of property," or "the granting of such variance will

alleviate a clearly demonstrable hardship, as distinguished from

a special privilege or convenience;" (ii) "all variances [are]

in harmony with the intended spirit and purpose of the

ordinance;" (iii) "the strict application of the ordinance would

produce an undue hardship;" (iv) the "hardship is not shared

generally by other properties in the same zone and the same

vicinity;" and (v) "the condition or situation of the property

. . . is not of so general or recurring a nature as to make

reasonably practicable the formulation of a general regulation

to be adopted as an amendment to the ordinance." City Charter §

9.18(b).

We review the Garners' four primary justifications for the

variances and whether the BZA could properly have found them to

satisfy all of the requirements of section 9.18(b) of the City

Charter.

13
 1. Condition of Lot Being Vacant in a District Where Most
Surrounding Properties Are Already Developed

The Garners first argue that they face a unique hardship

because they seek to build a new home on a vacant lot subject to

both the RM Zoning Ordinance and the Historic District

Ordinance, where most of the surrounding properties are already

developed.

Contrary to the repeated assertions made by City staff that

"[t]he zoning regulations and requirements in the Old and

Historic District are designed to apply to old buildings," the

City's Zoning Ordinance was expressly intended to apply to new

structures. Zoning Ordinance § 1-200(B) ("All buildings and

structures erected hereafter . . . shall be subject to all

regulations of this ordinance.") In fact, granting a variance

because a property owner is erecting a new structure would

render the Zoning Ordinance meaningless. We have rejected

interpretations of a statute that "would render the entire

statute meaningless." Stone v. Liberty Mut. Ins. Co., 253 Va.

12, 20, 478 S.E.2d 883, 887 (1996). 7 Therefore, the decision of

7
Furthermore, since much of the City is already developed,
any property owner could use this basis for requesting a
variance. The use of variances to resolve such a problem is
prohibited "because the piecemeal granting of variances could
'ultimately nullify a zoning restriction throughout [a] zoning
district.'" Hendrix, 222 Va. at 61, 278 S.E.2d at 817 (quoting
Packer, 221 Va. at 122-23, 267 S.E.2d at 143).
14
the BZA cannot be upheld on this ground.

2. Condition of Lot Being Shallow and Wide

The Garners next argue that a variance is justified because

their lot is exceptionally wide and shallow as compared to other

lots on the 100 block of Prince Street. City staff reported

that "[o]n the 100 block of Prince Street, two-thirds of the

lots are deeper than the [Garners'] property." The Garners'

argument, therefore, is that they face a hardship because, when

compared with other properties on the block, their relatively

more shallow lot makes it difficult to build a home that

satisfies the rear yard requirement.

We rejected a similar argument in Packer where "[t]he

premise for the Board's decision was that the [applicants]

should be entitled to build as close to the ocean as 'the

average of the houses along this block.'" 221 Va. at 122, 267

S.E.2d at 143. We held that

[i]f, as the Board concluded, one owner of the
property complying with a restriction should be
allowed to conform his structure to neighboring
nonconforming structures, then every such owner would
be entitled to do so. A board of zoning appeals could,
by granting variances piecemeal, ultimately nullify a
zoning restriction throughout the zoning district. But
the statute provides that "all variances shall be in
harmony with the intended spirit and purpose of the
ordinance."

Id. at 122-23, 267 S.E.2d at 143.

Likewise, the Garners' argument, if accepted, would justify

15
variances for the one-third of the properties that are even more

shallow than the Garners' property, yet still conform to the

zoning ordinance, resulting in the "granting [of] variances

piecemeal" that would "ultimately nullify" the zoning ordinance

requiring a rear yard, thereby conflicting with the "intended

spirit and purpose of the ordinance." Id. Since the City

Charter prohibited the BZA from issuing a variance not "in

harmony with the intended spirit and purpose of the ordinance,"

the BZA's decision cannot be upheld on this ground. City

Charter § 9.18(b). 8

3. Condition of the Property as being Subject to
Historic District Ordinance

Finally, the Garners contend that their property is

"undevelopable" because alternative designs would not comply

with both the Historic District Ordinance and the Zoning

Ordinance. 9

The BZA was presented with evidence that because the siding

8
The BZA was also presented with evidence that around half
of existing homes on the block did not have a rear yard (i.e.,
did not currently comply with the rear yard requirements) and
that therefore it would be a hardship to require the Garners to
comply with the rear yard ordinance. For the same reason, a
variance on this ground could not be upheld.
9
Because the Garners' third justification – the historic
siding on the home adjacent to their property – relates to their
claim of hardship resulting from being subject to both the
Historic District Ordinance and Zoning Ordinance, we combine
their third and fourth justifications for discussion.
16
of the home at 126 Prince Street is of historical value, the

Garners' property is immediately adjacent to a property of

extraordinary condition. The Garners argue that because the BAR

considers the visibility of the neighboring wall in deciding

whether to approve any home design the Garners might propose,

they face a unique challenge in creating a design that both

satisfies the BAR and conforms to the RM Zoning Ordinance.

As the Garners admitted during the BZA hearing, they have

the option of submitting to the BAR a conforming design that

would not require variances, and they have not done so.

Consequently, it is mere speculation that the BAR would not

approve this design or any other design that conforms to the

Zoning Ordinance. 10 Thus, there was no factual support for the

Garners' claim that their property, by being located next to the

historic wall, makes it uniquely more difficult to build a

structure that both satisfies the BAR and conforms to the RM

zoning regulations. Accordingly, the BZA's decision cannot be

upheld on this ground. See Hopkins, 197 Va. at 205, 89 S.E.2d

10
At the BZA hearing, Cox expressed the BAR's interest in a
home that would preserve a view of the neighboring wall stating,
"we feel pretty strongly, that's an important house" and "it's
the only house that survived largely intact from the fire. . . .
[W]e felt [the Garner home] should be as narrow as possible, as
short as possible, as simple as possible." But Cox did not
state that the BAR would reject a by-right design, instead only
indicating a general preference for a better view of the
historic wall.
17
at 3 (action that is "unsupported by facts, [i]s an illegal

action" by a board of zoning appeals).

Without support for that fundamental premise, the Garners'

argument is instead simply that because it is difficult to both

satisfy the BAR and comply with the RM zoning regulations, any

design that the BAR approves should be granted the necessary

variances. But all properties in the Old and Historic District

are subject to both the RM zoning regulations and Historic

District Ordinance. Under the Charter, the BZA may grant a

variance only if it finds "that the condition or situation of

the property concerned or the intended use of the property is

not of so general or recurring a nature as to make reasonably

practicable the formulation of a general regulation to be

adopted as an amendment to the ordinance." City Charter

§ 9.18(b); see also Hendrix, 222 Va. at 60-61, 278 S.E.2d at 816

(holding that a variance was improper where a zoning ordinance

"imposi[ng] . . . the off-street parking requirements was a

problem shared by all property owners" in that area); Packer,

221 Va. at 121-22, 267 S.E.2d at 142 ("Proximity to the ocean is

doubtless a 'privilege or convenience' coveted by every

homeowner along the beach. But a zoning restriction upon that

privilege does not constitute an 'unnecessary hardship' within

the meaning of [the Code].")

In passing upon requests for variances, a board of

18
 zoning appeals exercises the limited function of
insuring that a landowner does not suffer a severe
hardship not generally shared by other property
holders in the same district or vicinity. The power
to resolve recurring zoning problems shared generally
by those in the same district is vested in the
legislative arm of the local governing body.

Hendrix, 222 Va. at 61, 278 S.E.2d at 817.

Because being subject to both sets of ordinances is a

condition shared by every other property holder in the same

zone, this condition was "of so general or recurring a nature as

to make reasonably practicable the formulation of a general

regulation to be adopted as an amendment to the ordinance."

City Charter § 9.18(b); see Code § 15.2-2309. Moreover,

authorization of the variance upon this ground would amount to a

policy judgment that structures built in the Old and Historic

District should only be subject to approval of the BAR and need

not comply with the RM Zoning Ordinance and would, therefore,

constitute an "'administrative infringement upon the legislative

prerogatives of the local governing body.'" Hendrix, 222 Va. at

61, 278 S.E.2d at 817 (quoting Packer, 221 Va. at 123, 267

S.E.2d at 143). 11

11
The flaw in the Garners' argument is made apparent by
their assertion that "in order for the Garners to build the home
that the BAR found appropriate, they required the side and yard
variances from the BZA." Not only did the Garners fail to seek
approval from the BAR for a by-right design, their argument
improperly assumes that the BZA has the authority to authorize a
19
 III. CONCLUSION

In sum, none of the conditions asserted by the Garners to

justify their application for a variance satisfied the

requirements of City Charter § 9.18(b). Accordingly, the

decision of the BZA was contrary to law. Therefore, we will

reverse the judgment of the circuit court and enter final

judgment for Martin.

Reversed and final judgment.

variance to allow applicants to "build the home" found
appropriate by the BAR.
20